In Near, the Court had the opportunity to formalize the long-held notion that both the Constitution and the common law abhor the prior restraint of a free press. In so doing, however, it strengthened the hand of such as defamers and pornographers, demonstrating that there is a price to freedom which must be carefully and continually counted.

Responding to the rise of "yellow journalism" -- a sensationalizing of the news, often at the cost of accuracy -- the Minnesota legislature passed the Public Nuisance Abatement Law giving judges the power to shut down publications that routinely published lewd, obscene, malicious or defamatory material. The law was well received by the public and even served as a trial balloon for a nation equally insulted by crass journalism.

But a problem immediately arose, very predictably, when corrupt politicians sought to shut down a newspaper running exposées of their misdoings.

Near was the publisher of the [Minneapolis] Saturday Press, by today's standards a decidedly politically-incorrect character well-formed for yellow journalism, but whose articles and editorials revealed official corruption in the city with relative accuracy. The mayor and police chief being at the top of the paper's hit list, the city successfully sought an injunction stopping the Press's presses. Seeking an appeal of the injunction, Near immediately gained the support of the ACLU, but was ultimately represented to the Supreme Court by the legal team of Chicago publisher Robert R. McCormick.

In a narrow verdict, the Court not only firmly established press freedom as a constitutional right distinct from the freedom of speech, but also used the opportunity to establish that the prior restraint of the press -- preventing the publishing of objectionable material -- was unconstitutional. It struck down the Minnesota law in language clear enough to prevent future such efforts, using the Due Process clause of the Fourteenth Amendment to incorporate press freedom and protect it against erosion by the states.

The four dissenting justices argued that the Minnesota law did not constitute prior restraint, in that it allowed a publication to be restrained only after it had demonstrated its willingness to publish obscene, malicious or defamatory materials. At that point, wrote the dissent, the police power of the state had the authority to prohibit speech and publication established by law as objectionable.

The decision was generally hailed as a victory for the press and for liberty in general. And so it was, based upon the facts of the case. Permitting governmental authority to prohibit publication of materials deemed "defamatory" without a legal finding of libel is asking for trouble in a free country.

At the time of the Near decision, the legally acceptable line between permissible and impermissible publication and speech was far clearer and more logical than today. It was crossed when such expressions crossed into libel or obscenity. The test for the Near Court was simply to decide whether the Constitution allowed restraint based upon a fear that libelous or obscene materials were about to be published. While not addressing the latter (subsequent Courts found that obscenity could be restrained), the Court obviously found that potentially libelous notions could not be halted prior to publication, but that public officials retained their right to civil action should libel occur. This is a critical distinction in making the Near decision fair to our concept of liberty and the need for public scrutiny of officialdom.

Since that time, the New York Times v. Sullivan decision has made it all but impossible for public officials to sue the press over grossly inaccurate and accusatory statements, annulling the fairness of Near. The Court has also evolved its view of obscenity, not to remove the right of prior restraint completely, but simply to make it impossible to define obscenity. As it stands today, it is difficult or impossible to quantify any limit of permissibility on the freedom of the press or of speech. The price of freedom may have grown too dear.

As the political popularity of laws against "hate speech" and the display of the "symbols of hate" grows, we presume the Court will be asked to decide a case involving the press and these notions. Depending upon its findings, it may take a step back towards reaffirming the underlying fairness of Near by finding such ideas unconstitutional and absurd, or it may finally tear the historical and common sense continuum of the freedoms of speech and the press to ribbons by placing such a silly no-no between ordinary acceptable expressions and only-recently-acceptable libel and obscenity.